Before Judges Havey, Keefe and A.A. Rodr¡guez.
The opinion of the court was delivered by: Keefe, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 8, 1999 - Decided: December 8, 1999
On appeal from Superior Court of New Jersey, Law Division, Essex County.
Plaintiff Catherine Longo appeals from the entry of summary judgment in favor of defendant Market Transition Facility of New Jersey (MTF). The Law Division Judge, relying on our opinion in Samuel v. Doe, 309 N.J. Super. 406 (App. Div. 1998), aff'd as modified, 158 N.J. 134 (1999), found that plaintiff was not eligible for uninsured motorist (UM) benefits because the vehicle she occupied at the time of the accident was not uninsured within the meaning of N.J.S.A. 17:28-1.1e(2). We disagree and reverse.
Plaintiff alleges that on November 25, 1991, she was a patron at a tavern in Belleville where she overindulged in alcoholic beverages. Upon leaving the tavern and realizing that her ability to drive was impaired by the consumption of alcohol, plaintiff entered her vehicle and fell asleep in the passenger seat. When she awoke, she discovered that her vehicle had struck a parked vehicle some distance from the tavern. Plaintiff's head had struck the windshield on the passenger side, causing head and facial injuries. Plaintiff alleges that the vehicle was driven from the place where it was parked to the scene of the accident by an unknown third person without plaintiff's permission. The operator of the vehicle left the scene of the accident. *fn1
At the time of the accident, plaintiff's vehicle was insured by MTF. The policy contained a standard UM endorsement. Although the exact date does not appear in the record, plaintiff made a demand for UM benefits under the policy several years after the accident. By letter dated October 2, 1996, MTF denied benefits. The sole reason for the denial was the definition of "Uninsured Motor Vehicle" contained in the policy. While the letter recited the entire policy definition, the following portion of the definition was highlighted in bold letters:
Neither 'uninsured motor vehicle' nor 'underinsured motor vehicle' includes any vehicle or equipment 1. Owned by or furnished or available for the regular use of you or any family member.
Plaintiff filed a declaratory judgment action seeking coverage under the UM endorsement. After discovery was taken, MTF moved for summary judgment and plaintiff cross-moved. At oral argument on the motion in the Law Division, MTF contended that the above quoted language in the policy, which essentially tracks the language of N.J.S.A. 17:28-1.1e(2), precluded UM coverage because plaintiff was occupying a vehicle owned by her at the time of the accident and claimed that it was uninsured. The motion Judge agreed with MTF and granted summary judgment in its favor.
While the current appeal was pending in this court, the Supreme Court decided Samuel. MTF filed a supplemental brief contending that the Supreme Court's decision was dispositive of this appeal. Plaintiff, on the other hand, claims that Samuel is factually distinguishable in that plaintiff in this case has claimed that she did not give permission to the unknown driver to operate her vehicle, whereas in Samuel, the plaintiff contended that she had given permission but could not remember the identity of the person to whom permission was extended. We agree with plaintiff that Samuel is factually distinguishable and that the difference in the facts requires a different legal analysis.
In Samuel, after discussing the procedural history of the case in the Law and Appellate Divisions, the Supreme Court began its analysis with the assumption that coverage was afforded Samuel under the liability portion of the policy, and framed the question before it as "how to determine if there was in fact such an unidentified permissive driver of the car and whether that person's negligence caused plaintiff's injuries." 158 N.J. at 140 (emphasis added). In further refining the inquiry, the Court said:
There are basically only two possible factual scenarios concerning the existence of an unidentified driver. Either the plaintiff was herself the driver of the car, in which event she would not be entitled to coverage, or she gave permission to a companion at the Ketch tavern to drive the car.
Another possibility was advanced in a footnote, namely, that plaintiff knew the identity of the driver but concealed it. Ibid. n.3. The point is that Samuel was decided in the context of the insured having given permission to some unidentified driver to operate her vehicle, a factual scenario that ostensibly invokes coverage under the liability section of an automobile policy, rather than the UM endorsement, as is the case here where permission was not given. See Rutgers Cas. Ins. Co. v. Collins, 158 N.J. 542, 548-49 (1999) (holding that the omnibus clause of a liability policy is invoked when an insured under the policy gives another person permission to operate the vehicle). Thus, contrary to MTF's contention in its supplemental brief, the Supreme ...